IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Arkmael Ray Sales, :

Plaintiff : Civil Action 2:11-cv-239

v. : Judge Marbley

Mr. K. SMith, et al., : Magistrate Judge Abel

Defendants

:

ORDER

Plaintiff Arkmael Ray Sales, a state prisoner, brings this action alleging that

defendants violated his First and Eighth Amendment rights. This matter is before the

Court on plaintiff Arkmael Ray Sales' November 21, 2012 objections to Magistrate Judge

Abel's November 2, 2012 Report and Recommendation that defendants' August 1, 2012

motion for summary judgment be granted and that plaintiff Sales’ October 31, 2012

motion for injunctive relief be denied.

Upon de novo review in accordance with the provisions of 28 U.S.C. §636(b)(1)(B),

the Court ADOPTS the Report and Recommendation and GRANTS defendants'

August 1, 2012 motion for summary judgment. (Doc. 54). 

I. Allegations in the Complaint

The complaint alleges that on June 3, 2010, at approximately 2:45 p.m., plaintiff

requested that he be released from his unit for his prescribed breathing treatment.

Plaintiff suffers from chronic obstructive pulmonary disorder. Chemical mace had been

1

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 1 of 10 PAGEID #: <pageID>
released in his unit, and plaintiff was having difficulty breathing. Plaintiff requested to

be released three times. An inmate walking by observed plaintiff and stated that it was

an emergency. Defendant Smith continued to ignore plaintiff’s requests. Plaintiff told

defendant Smith that he may as well write him up because plaintiff intended to file a

complaint as soon as he could get the form. Defendant Smith charged the gate and

threatened to put plaintiff in the hole. The gate was opened and plaintiff went to the

infirmary where he received a breathing treatment. Plaintiff also required 35-40 minutes

of oxygen before he returned to the unit. When he returned to his unit, plaintiff drafted

a complaint concerning defendant Smith. 

The complaint alleges that immediately thereafter, defendant Smith began

retaliating against plaintiff by attempting to have him placed in the hole. Defendant

Smith began repeated searches of plaintiff’s property. When plaintiff filed a second

complaint, the retaliation escalated. Plaintiff was subjected to daily searches of his

property and his belongings were left scattered on the floor. Plaintiff never received a

response to his first complaint. Defendant Hammond was ordered by Major Bill Blaney

to respond plaintiff’s second complaint. Plaintiff wrote to Major Blaney about

Hammond’s failure to respond. Defendant Hammond informed plaintiff that he was

not going to win and that he should give up. Plaintiff asked that he respond to the

complaint so that plaintiff could proceed to the next step of the grievance procedure. 

2

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 2 of 10 PAGEID #: <pageID>
On one day, defendant Smith shook plaintiff down three times within an eight

hour shift. Plaintiff filed a second complaint with defendant Hammond against

defendant Smith. 

On October 17, 2010, plaintiff was in bed all day. He did not leave the unit until

after the 4:00 count. Upon his return from his meal, plaintiff collected $20 from football

winnings and locked it in his locker. He went to make a cup of coffee. While waiting for

the water to heat, plaintiff was surrounded by two correctional officers. Plaintiff was

subjected to a strip search. 

On October 19, 2010, plaintiff received a conduct report dated October 17, 2010

charging him with a violation for having a weapon in his bed. At the Rules Infraction

Board, plaintiff pleaded not guilty and requested that the security tape be produced to

determine who had planted the weapon. Plaintiff also requested that finger printing

and voice stress testing be conducted. Plaintiff received a 15-day solitary and local

control placement with a recommendation that his security level be raised. 

The complaint alleges that Inmate Hirst informed plaintiff that he had seen Smith

near his bed on the day that the weapon was found there. Inmate Whipple provided

plaintiff with an affidavit concerning the day that plaintiff requested release from the

unit because of the spray.

Plaintiff received a folded up piece of paper from an inmate porter. The note was

purportedly from correction officer Hill directed to defendant Smith concerning their

3

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 3 of 10 PAGEID #: <pageID>
plan to place a weapon in Sales’ bed. On January 24, 2011, corrections officers

Hammond and Dray confiscated the note. 

II. Plaintiff’s Objections

Plaintiff argues that defendant Smith indicated in his response to an

interrogatory that Smith had had disciplinary problems from Sales prior to June 3, 2010,

but defendant has not produced any evidence to support this allegation. Plaintiff Sales

maintains that he submitted evidence demonstrating that he has exhibited superior

institutional conduct since 2002. Sales maintains that defendant lied in his August 1,

2012 declaration when he stated that he caught plaintiff selling or trying to sell drugs. 

Plaintiff asks why the other inmate was not issued a conduct report if Sales was in fact

attempting to sell drugs to someone else. Plaintiff maintains that defendant Smith only

began treating plaintiff differently after plaintiff filed his June 3, 2010 complaint.

Plaintiff has submitted evidence showing that defendant Smith has issued three

conduct reports concerning plaintiff. Plaintiff maintains that these conduct reports

consist of lies, and his attempts to file grievances regarding the lies have been

unsuccessful. Plaintiff also relies on discrepancies in the conduct reports filed by

defendants. Plaintiff contends that he could introduce witnesses to show that defendant

Hill has lied. 

Plaintiff maintains that the Magistrate Judge erred when he found that plaintiff

was required to provide verifying medical evidence to show that the delay in treatment

4

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 4 of 10 PAGEID #: <pageID>
was sufficiently serious and placed him in substantial risk of harm. He maintains that

he would call expert witnesses to demonstrate the danger pepper spray poses to him.

Plaintiff also objects to the Magistrate Judge’s recommendation that his motion

for injunctive relief be denied. Plaintiff contends that he has been threatened and he is

being denied the same rights and privileges as those of the general prison population.

He maintains that he has not had a change of clothes since September 5, 2012.

III. Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A party asserting the absence or presence of a

genuine dispute must support that assertion by either “(A) citing to particular parts of

materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for purposes

of the motion only), admissions, interrogatory answers, or other materials”; or “(B)

showing that the materials cited do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the

fact.” Fed. R. Civ. P. 56(c)(1).

A party may object that the cited material “cannot be presented in a form that

would be admissible in evidence,” and “[t]he burden is on the proponent to show that

the material is admissible as presented or to explain the admissible form that is

anticipated.” Fed. R. Civ. P. 56(c)(2); Fed. R. Civ. P. 56 advisory committee’s note. If a

5

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 5 of 10 PAGEID #: <pageID>
party uses an affidavit or declaration to support or oppose a motion, such affidavit or

declaration “must be made on personal knowledge, set out facts that would be

admissible in evidence, and show that the affiant or declarant is competent to testify on

the matters stated.” Fed. R. Civ. P. 56(c)(4).

While the court must consider the cited materials, it may also consider other

materials in the record. Fed. R. Civ. P. 56(c)(3). However, “[i]n considering a motion for

summary judgment, the district court must construe the evidence and draw all

reasonable inferences in favor of the nonmoving party.” Revis v. Meldrum, 489 F.3d 273,

279 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986)). “The central issue is ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.’” Id., 489 F.3d at 279–80 (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251–52 (1986)).

IV. Discussion

The Eighth Amendment forbids prison officials from “unnecessarily and

wantonly inflicting pain” on an inmate by acting with “deliberate indifference” toward

the inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To

demonstrate an Eighth Amendment deprivation, a prisoner must show that a prison

official acted with deliberate indifference to his serious medical needs. Estelle, 429 U.S.

at 103-04. Prison officials are liable only if they know of and disregard “an excessive

risk to inmate health or safety; the official must both be aware of facts from which the

6

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 6 of 10 PAGEID #: <pageID>
inference could be drawn that a substantial risk of serious harm exists, and he must

draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “An official’s failure to

alleviate a significant risk that he should have perceived but did not, while no cause for

commendation, cannot under our cases be condemned as the infliction of punishment.”

Id. at 838. Mere negligence does not constitute deliberate indifference. See, Estelle, 429

U.S. at 106. Further, a prisoner does not state a claim merely by pleading that he

disagrees with the diagnosis or treatment. Estelle, 429 U.S. at 107-08; Westlake v. Lucas,

537 F.2d 857, 860 n. 5 (6th Cir. 1976).

Here, the Magistrate Judge found that the only disputed facts were the length of

time that Sales was forced to wait before being released to obtain his breathing

treatment and the reason for that delay. Sales alleges that he was forced to wait ten

minutes before he was released and that there was no apparent reason for the delay.

Defendants maintain that plaintiff only had to wait for five minutes before he was

released and that the reason for the delay was that Correction Officer Smith had to tend

to his own needs based on his exposure to the pepper spray. 

The Magistrate Judge properly noted that “an inmate who complains that delay

in medical treatment rose to a constitutional violation must place verifying medical

evidence in the record to establish the detrimental effect of the delay in medical

treatment to succeed.” Napier v. Madison County, Kentucky, 238 F.3d 739, 742 (6th Cir.

2001)(quoting Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1188 (11th Cir.

1994). Verifying medical evidence provides the court with the best available evidence

7

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 7 of 10 PAGEID #: <pageID>
as to whether the alleged deprivation is sufficiently serious and whether the inmate was

at substantial risk of harm. Id. “Where a prisoner has received some medical attention

and the dispute is over the adequacy of the treatment, federal courts are generally

reluctant to second guess medical judgments.” Graham v. County of Washtenaw, 358 F.3d

377, 385 (6th Cir. 2004). The burden of proof in such cases is fairly substantial, in that an

inmate complaining about his course of treatment, such as receiving one medication

instead of another, must “place verifying medical evidence in the record to establish the

detrimental effect of the delay in medical treatment to succeed.” Napier v. Madison

County, Kentucky, 238 F.3d 739, 742 (6th Cir. 2001).

Plaintiff has not provided any verifying medical evidence to establish the

detrimental effect of the delay of an additional five minutes caused him. Plaintiff’s

subjective complaints are simply not sufficient and do not constitute verifying medical

evidence. Plaintiff maintains that he would have subpoenaed expert testimony to show

that the delay had a detrimental effect, but plaintiff was required to present this

evidence in order to survive summary judgment. He failed to do so. 

It is not clear whether plaintiff intended to object to the Magistrate Judge’s

finding with respect to his claim for retaliation in violation of the First Amendment, but

the Court finds that the Magistrate Judge correctly found that Plaintiff has not shown

that defendant Smith took an adverse action against him. Plaintiff simply alleges that

Smith enforced prison rules against him. Although plaintiff maintains that defendant

Smith enforced rules against him that he did not enforce against other inmates, plaintiff

8

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 8 of 10 PAGEID #: <pageID>
fails to cite to any case law supporting his claim that selective enforcement of prison

rules is actionable. Sales also fails to provide any evidence to support his allegations of

selective enforcement.

In his motion for injunctive relief, plaintiff Sales alleges that a threatening note

was mailed to his sister. During an investigation, Sales made a photo identification of

those responsible for the threats and signed a statement against them. He was placed in

Security Control on September 5, 2012. He was advised to ask for protective custody.

Five days later, plaintiff signed a paper asking to be transferred to the Hocking

Correctional Institution. However, he continues to be held in Security Control.

The Magistrate Judge properly noted that these allegations do not involve this

lawsuit and provide no basis for injunctive relief here. Further, a prisoner has no right

to be transferred to a particular prison. See, Olim v. Wakinekona, 461 U.S. 238, 245 (1983);

Montayne v. Haymes, 472 U.S. 236, 242-43 (1976); Meachum v. Fano, 427 U.S. 215, 224-25

(1976); Ward v. Dyke, 58 F.3d 271, 275 (6th Cir. 1995).

V. Conclusion

 For the reasons stated above, the Court ADOPTS the Magistrate Judge’s Report

and Recommendation. Defendants' August 1, 2012 motion for summary judgment is

GRANTED. Plaintiff’s October 31, 2012 motion for injunctive relief (doc. 68) and his

November 21, 2012 motion for reconsideration (doc. 70) are DENIED. 

9

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 9 of 10 PAGEID #: <pageID>
The Clerk of Court is DIRECTED to enter JUDGMENT for defendants. This

action is hereby DISMISSED.

 s/Algenon L. Marbley 

Algenon L. Marbley

United States District Judge

DATED: March 28, 2013

10

Case: 2:11-cv-00239-ALM-MRA Doc #: 74 Filed: 03/28/13 Page: 10 of 10 PAGEID #: <pageID>